judging that the Pan Handle Railroad Company "would be benefited in the sum of six hundred dollars in excess of any and all damages it would sustain by reason of the taking up of the tracks and bridge temporarily to permit the construction of the ditch, and for the replacing of the same, and for all other costs and expenses incurred by it by reason of the construction of said ditch." From this order an appeal was taken to the Supreme Court of Indiana, and is still pending.

The motion to dissolve the injunction was sustained by the Circuit Court, and the bill dismissed, with the proviso that, upon the perfecting of an appeal to this court, the order dissolving the temporary injunction should not become operative, but the injunction continue until the final disposition of the appeal. From this order of the court the appeal is prosecuted.

G. E. Ross, for appellant.

Lemuel Darrow and Horace S. Oakley, for appellee.

Before WOODS, JENKINS, and GROSSCUP, Circuit Judges.

After the foregoing statement of the case, GROSSCUP, Circuit Judge, delivered the opinion of the court, as follows:

It is conceded that the Circuit Court of LaPorte County had jurisdiction of the general subject-matter embraced in the order locating the drain, and the assessing of benefits and damages to the lands through which it was laid out; and it is conceded that, for these purposes, jurisdiction was obtained over the Pan Handle Railroad Company. Whether the order, as against the railroad company, is regular or valid is, therefore, a question for the state courts, or, in case a Federal question be involved, for the Supreme Court of the United States, reviewing the state court.

Nor would the execution of the order of the state court, in the manner pointed out by the bill, amount to a diminution of the res covered by the mortgage. The taking, though presumably for a permanent use, is not of the fee, but only of an easement; and, subject to the public use, the title, and all consistent uses, will remain in, and belong to, the Pan Handle Railroad Company. Hagaman v. Moore, 84 Ind. 496. There is in the case, therefore, no threatened injury to the appellants, unless the interruption of the operation of the road, or the increased cost of building and maintaining the new bridge, can be said to amount to an impairment of the mortgage security.

The case, practically viewed, presents no such danger. It is inconceivable, in the absence, at least, of some more satisfactory showing, that a great railroad extending from Chicago to Pittsburg, and carrying, without default, a seventy-five million dollar bonded indebtedness, should be embarrassed by an additional expenditure, for a new bridge, of five thousand dollars, or by a two days' interruption of traffic at some point upon its line-an interruption easily obviated by a detour around the point of obstruction over another railroad. The execution of the order of the Indiana court will clearly inflict no such injury upon the mortgage security as would entitle the appellants to the staying hand of the United States Courts.

The order of the Circuit Court, to the extent that it dissolves the injunction and dismisses the bill, is affirmed, and the case is reinanded for further proceedings not inconsistent with this opinion.

ACTIENGESELLSCHAFT

(109 Fed. 151.)

VEREINIGTE ULTRAMARIN-FABRIKEN
AMBERG.

(Circuit Court of Appeals, Third Circuit. May 7, 1901.)

No. 7.

V.

UNFAIR COMPETITION-PACKAGES AND LABELS-RIGHT TO EXCLUSIVE USE. Abandonment of the right to the exclusive use of a distinctive package or other dress for his goods by its originator, who has used it generally and continuously for many years, is not shown by the fact that it has been also used, not only by defendant, but by others, unless it further appears that there has been such acquiescence by complainant as to indicate, not only a practical abandonment, but also an intention to abandon.1

Appeal from the Circuit Court of the United States for the District of New Jersey.

Louis C. Raegener, for appellant.
Frederick W. Holls, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS, Circuit Judge. We are not able to concur in the conclusion that was reached by the court below upon the question which the learned judge of that court properly regarded as the controlling one. We agree that the complainant was not entitled to a decree restraining the defendant below from using the box and labels described in the bill of complaint, unless it appeared "that the complainant, or some one through whom it claims, was the first to adopt this particular style of dressing, and that since its adoption its usage by them has been general and continuous and exclusive," but our examination of this record has satisfied us that in all these particulars the case of the complainant was adequately established. That it or its predecessors were the first to adopt and use the boxes and labels in question, and that they have continuously used them for more than 40 years, cannot, upon the evidence, be reasonably doubted. But the court below held, and it is now contended here, that such use was not exclusive, and by this contention the only serious question in the case is presented. What, as respects exclusiveness of use, is requisite to support a demand by the originator of a distinctive style of dressing for his goods, that its use by others for similar goods shall be prohibited? It is no answer to his complaint against any particular person who has so used it to say that such person is not the only one who has done so, for a trespasser cannot justify upon the ground that others have committed like trespasses. Therefore the appropriation by the appellee of the appellant's box and labels is not excused by showing merely that others had similarly appropriated them. It is essential that it should also appear that the appellant had, by its acquiescence, abandoned its exclusive right, and, "to establish a de

1 Unfair competition in trade, see notes to Scheurer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.

fense of abandonment, it is necessary to show, not only acts indicating a practical abandonment, but an actual intent to abandon." Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 21 Sup. Ct. 8, 45 L. Ed. 60. This defense the only substantial one in the present case was not sustained in accordance with this rule. No acts were shown which can fairly be said to indicate even a practical abandonment, and that the evidence as a whole would not warrant the inference of an actual intent to abandon is, in our opinion, entirely clear. The appellant has not, it is true, proceeded against all persons who have violated the right it now seeks to maintain; but it did obtain a final judgment against one of them in 1883, and about five or six years before this suit was brought it threatened to proceed against others, who thereupon desisted from doing the acts complained of. These facts are not disputed, and their necessary effect is, we think, to repel the assumption of an intent to abandon.

The decree of the circuit court is reversed and the case will be remanded to that court, with direction to enter a decree in accordance with this opinion.

(109 Fed. 154.)

SWAIN v. HOLYOKE MACHINE CO.

(Circuit Court of Appeals, First Circuit. May 24, 1901.)

No. 353.

1. PATENTS-PRIOR PUBLIC USE-SALE BY PATENTEE.

A single unrestricted sale by a patentee of a machine embodying his invention, for actual and practical use by the purchaser, more than two years before the filing of the application, constitutes a public use or sale, within Rev. St. § 4886, which will invalidate the patent, unless it is clearly shown that the principal purpose of the sale was experimental, with a view of testing and perfecting the invention.

2. SAME-TURBINE WATER WHEELS.

The Swain patent, No. 535,467, for turbine water wheels, as to claims 1 and 3, is void because of prior public use of the invention; and claim 2 is void because the distinctive feature therein shown lacks of invention.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

Charles F. Perkins (Charles H. Drew, on the brief), for appellant. Elmer P. Howe (Benjamin Phillips, on the brief), for appellee. Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

COLT, Circuit Judge. This appeal relates to letters patent No. 535,467, granted to Asa M. Swain, the complainant, for a turbine. water wheel. The application was filed January 10, 1881, and the patent issued March 12, 1895, 14 years thereafter. Only the first three claims are in issue.

The court below dismissed the bill on the ground that there had been an unrestricted sale of the patented machine embodied in claims

1 and 3 more than two years prior to the application (Rev. St. § 4886), and that claim 2 involved no invention over claim 3. 102 Fed. 910.

The evidence on the question of public use or sale is not controverted. It is carefully summarized in the opinion of the circuit court. The fact of an unrestricted sale more than two years before the application for the patent is undisputed. The application was dated January 10, 1881, and a turbine water wheel machine embodying the substantive invention of the patent was sold, installed, and put in operation at Moodus, Conn., by the patentee, on or before January 6, 1879.

The complainant seeks to overcome the bar of the statute on two grounds: First, that the Moodus machine was incomplete; second, that the sale was for the purpose of experiment.

In order to ascertain whether the Moodus machine contained Swain's complete invention, it is necessary to point out what the invention was for which the patent issued.

At the date of the Swain invention it was old to mount two turbine wheels on a horizontal shaft, which discharged the water outwardly through separate educts. It was also old to mount two turbine wheels on a horizontal shaft, which discharged the water inwardly into a common educt. The inward-discharge machine was not as efficient as the outward-discharge machine, by reason of the conflict of the two streams of water in the common educt. To overcome this disadvantage, Swain conceived the idea of maintaining the separation of the two streams by means of a central partition. Dividing the educt by a central partition of greater or less length, but of sufficient length to break or check the action of one stream against the other by wholly or partially separating the two streams, is the sum and substance of Swain's invention. It is not pretended that the patented machine is more efficient than the outward-discharge machine. It does not represent any marked advance in the art. Its only purpose is to economize space. The outward-discharge machines, by reason of the larger space they occupy, cannot be used in certain localities. The inward-discharge machines are more compact, and can be set up in places not adapted to the other class of machines. For this reason only it was important to devise an inwarddischarge machine of the same efficiency as the outward-discharge, and this was the problem which Swain undertook to solve by his central partition in the educt.

In an argument filed in the patent office, Swain states the essence and scope of his invention in the following words:

"It is desirable to inquire just what is the actual invention made by the applicant which is involved in the combinations claimed; what constitutes the advance which he made over the previous art,-in order to see what parts are the essence of the invention. The union of two wheels in one machine, discharging their streams towards each other without conflict, is the gist of the invention, and only such features as are essential to that are material parts of the combination. The wheels must be vertical, but the construction of the floats, the guides, gates, etc., may be any one of various patterns; there must be an educt located between the wheels, but the shape, dimensions, and mode of construction of the pipe or pipes forming the educt may be greatly varied from the precise form shown in the figures of the drawings, and still retain the essential character required."

In another communication to the patent office, Swain says:

"His invention does not consist in an improvement in means heretofore used for separating the streams of water, because none was ever known; not in a modification of somebody's else partition, but in the partition itself; and whoever uses such, however small or however shaped, in the combination as set forth, that does in fact obviate to any extent the evil named, employs the applicant's invention, at least, however much he may add something of his own or others."

The specification of the patent likewise declares that the invention is for the central partition:

"I am aware that double vertical turbines have been made, discharging towards each other into a common receptacle, but without any partition or depression, curved, or otherwise to break the direct action of one stream against the other, thereby causing serious loss of efficiency; this defect being completely remedied by my partition, extending downward, and forming a continuation of the double quarter turn, A, A, in the educt. It is obvious that this partition may be shortened or lengthened in the educt at the pleasure of the constructor, but it should be remembered that when it is made quite short it will develop its full utility only when both wheels are being operated above one-half of their full capacity. Any partition, however short, or any construction of the interior of the educt which breaks or checks the action of one stream against the other, is within the spirit of my invention. The extent of the partition is simply a matter of degree in the application of the invention."

The first claim of the patent is for any educt chamber or receptacle so constructed as to form a partition, whereby the direction of the stream from each wheel is diverted, and the action against the stream of the other wheel is wholly or partially obviated:

"(1) Two vertical turbine water wheels in one machine, discharging their effluent water towards each other, combined with a common receptacle into which the water from both wheels is discharged, said receptacle being so constructed on the inside as to form a partition or obstruction, therein, located between the wheels, whereby the direction of the stream from each wheel is diverted, and its action against the stream of the other wheel is wholly or partially obviated, substantially as described."

The third claim is more specific, in that it provides for a dividing partition which curves outwardly and downwardly:

"(3) The combination of two turbine wheels provided with a surrounding flume case and induct passages, and arranged to discharge the water into a common educt passage located between them, and provided with a dividing partition which curves outwardly and downwardly from each wheel, substantially as described."

In the second claim the partition is extended through the draft pipe:

"(2) Two turbine wheels provided with a surrounding flume case and induct passages, each wheel discharging its effluent water into a quarter turn, A, having its top surface curved outwardly and downwardly from said wheel, said quarter turns being located between the wheels, in combination with said quarter turns, A, A, and a draft pipe, O, having a vertical partition, i, throughout its entire length, which is practically a continuation of the central walls between the quarter turns, whereby the entire educt is divided into two separate passages, substantially as described."

As the patentee declares that his invention is for a central partition of greater or less length in the educt chamber, and that "the extent of the partition is simply a matter of degree," it is manifest that the extension of the partition through the draft tube involves no